The Supreme Court hates family court cases, but they like free speech cases, and it just decided to hear a case on Facebook threats, as I mentioned in June:
Another free speech case involves the question of what constitutes a threat on Facebook. The facts are pretty hairy. Anthony Elonis was convicted of making threats against his estranged wife and an FBI agent. His posts said things like, "I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."So I guess that this is a borderline case under current court precedents.
Soon he moved on to suggest that he might make "a name" for himself with a school shooting. "Hell hath no fury like a crazy man in a kindergarten class. The only question is ... which one?"
At that point, a female FBI agent paid him a visit, which provoked a post in which he said that he'd had to control himself not to "slit her throat, leave her bleeding from her jugular in the arms of her partner."
At Elonis' trial, the judge instructed the jurors that to convict, they had to conclude that this was not merely exaggeration. His Facebook posts needed to be statements that a reasonable person would interpret as a serious expression of an intention to inflict bodily injury. Elonis contended that he was just mimicking rap songs — indeed, he often linked to songs with his post. He argued that he should not be convicted without actual proof that he intended to threaten, intimidate or harm.
The intent standard that Elonis argued for might make it much more difficult to win a conviction for making illegal threats. But whatever rule the justices come up with, observes University of Virginia law professor Leslie Kendrick, it will likely apply not just to Facebook and Twitter, but to all forms of communication — including people speaking face to face or publishing in the newspaper. In other words, says Kendrick, when crafting a rule, the justices will ask if the standard "is going to chill people who engage in speech that is borderline but ultimately protected."
Protected, that is, by the First Amendment guarantee of free speech. Most court experts seem to believe that Elonis may win because of the culture of today's social media. "The context of rap music these days suggests that what Elonis put out there really isn't all that unusual for what's going on on Facebook and what's going on in the popular culture," says professor William Marshall of the University of North Carolina School of Law.
After all, the current Supreme Court may be viewed as conservative, but it has, with little or no dissent, already upheld a fair amount of "fringe speech" — whether it's crush videos, demonstrations at military funerals or the sale of violent video games to kids.
Not everyone, however, agrees that the Facebook threat case is in the same category. Former Solicitor General Gregory Garre notes that Elonis' posts "ticked off all the boxes" — domestic violence, school shootings, violence against a federal officer. Garre says he "wouldn't be surprised if [Elonis' Facebook posts] struck the justices as something very problematic."
Brewington did not post anything about slitting anyone's throat. I do not agree with posting such hostility, altho I have not seen the context so I cannot really judge. If someone posted a comment on this blog about wanting to slit someone's throat, I would delete the comment.
Nevertheless we need a strong Supreme Court statement in favor of free speech, as long as honest men like Brewington are being prosecuted for merely using the internet to hold public officials accountable for their bad actions.